Summary of law reform necessary to achieve full prohibition

Prohibition is still to be achieved in the home, schools, penal system and alternative care settings.

Article 89 of the Penal Code states: “Nothing, which is done in good faith for the benefit of a person under twelve years of age ... by or by consent, either express or implied, of the guardian or other person having lawful charge of that person, is an offence by reason of any harm which it may cause, or be intended by the doer to cause, or be known by the doer to be likely to cause, to that person...”, and an illustration to article 350 confirms that caning of schoolchildren does not amount to criminal force under that article. These provisions should be repealed and explicit prohibition enacted of all corporal punishment and other cruel and degrading punishment of children by parents, teachers and all adults with lawful authority over children.

The provisions on corporal punishment of boys in the Education Regulations (Student Discipline) 2006 should be repealed and explicit prohibition of corporal punishment enacted in relation to all education settings, public and private. In the penal system, provisions allowing corporal punishment of children committed of a criminal offence in the Child Act, the Penal Code, and the Shari’a Criminal Offences (Hudud and Qisas) Enactment, should be repealed. Provisions allowing corporal punishment as a disciplinary measure in penal institutions in these Acts, the Prison Act, and any other laws relating to juvenile detention should also be repealed, and explicit prohibition enacted in legislation applicable to disciplinary measures in all institutions accommodating children in conflict with the law. Explicit prohibition should be enacted of all corporal punishment in all alternative care settings, including public and private day care, residential care, foster care, etc.

Current legality of corporal punishment

Home

Corporal punishment is lawful in the home. Article 89 of the Penal Code (1936) states: “Nothing, which is done in good faith for the benefit of a person under twelve years of age ... by or by consent, either express or implied, of the guardian or other person having lawful charge of that person, is an offence by reason of any harm which it may cause, or be intended by the doer to cause, or be known by the doer to be likely to cause, to that person: Provided that this exception shall not extend to (a) the intentional causing of death, or to the attempting to cause death; (b) the doing of anything which the person doing it knows to be likely to cause death for any purpose other than the preventing of death or grievous hurt, or the curing of any grievous disease or infirmity; (c) the voluntary causing of grievous hurt, or to the attempting to cause grievous hurt, unless it be for the purpose of preventing death or grievous hurt, or the curing of any grievous disease or infirmity; (d) the abetment of any offence, to the committing of which offence it would not extend.” Article 350 prohibits criminal force but states by way of illustration that caning of a scholar by a headteacher does not amount to criminal force. Article 499 confirms that a schoolmaster’s authority is derived from a parent.

Children have limited protection from violence and abuse under the Child Act (2001), the Penal Code (1936), the Guardianship of Infants Act (1961) and the Domestic Violence Act (1994).

Schools

Corporal punishment of boys is lawful in schools, regulated by the Education Regulations (Student Discipline) (2006) under the Education Act (1996). Article 350 of the Penal Code confirms that caning of a scholar by a headteacher does not amount to criminal force (see above).

Penal system

Malaysia has a dual system of secular and Islamic law. The main laws governing juvenile justice are the Child Act, the Penal Code, and the Criminal Procedure Code (1976). For Muslim children, Islamic laws are also applicable – the Sharia Courts (Criminal Jurisdiction) Act (1965), the Sharia Criminal Offences (Federal Territories) Act (1997) and the Sharia Criminal Procedure (Federal Territories) Act (1997). There is no prohibition of cruel, inhuman or degrading treatment or punishment in the Federal Constitution (1957).

Corporal punishment is lawful as a sentence for crime. Article 91(g) of the Child Act authorises the court for children to  “order the child, if a male, to be whipped with not more than ten strokes of a light cane – (i) within the Court premises; and (ii) in the presence, if he desires to be present, of the parent or guardian of the child”. Article 92 specifies how the whipping should be carried out: the child should first be certified fit for the punishment by a medical officer; the whipping should be with a light cane “with average force without lifting his hand over his head so that the child’s skin is not cut”; and it should be inflicted on any part of the child’s clothed body “except the face, head, stomach, chest or private parts”. The Criminal Procedure Code provides for whipping of a youthful offender up to 10 strokes with a light rattan, “in the way of school discipline” (article 288), and this may be ordered in cases normally punished by fine or imprisonment (article 293). No sentence of whipping shall be passed on women or on males sentenced to death (article 289). Many offences in the Penal Code and other laws are punishable by whipping.

Corporal punishment is also lawful as a sentence under Islamic law, and there is no exemption for females. The Sharia Courts (Criminal Jurisdiction) Act, which applies to Muslims in all the States of Peninsular Malaysia (articles 1 and 2), provides for Islamic courts to order whipping up to six strokes (article 2). The Sharia Criminal Offences (Federal Territories) Act applies to Muslims in the Federal Territories of Kuala Lumpur and Labuan (article 2), and provides for the punishment of whipping up to six strokes for the offences of false doctrine, incest, prostitution, homosexual acts and other sex offences (articles 4, 20, 21, 22, 23, 25 and 26). The Act applies to children who have attained the age of puberty according to Islamic law (articles 2 and 51). The Sharia Criminal Procedure (Federal Territories) Act, specifies how whipping should be carried out (articles 125 and 126).

The Government stated its intention to amend the provisions for caning of boys in the Child Act in 2007 (25 June 2007, CRC/C/MYS/CO/1, Concluding observations on initial report to the Committee on the Rights of the Child, para. 48). During examination by the Human Rights Council at the Universal Periodic Review in 2009, the Government stated that abolition of judicial caning and capital punishment for persons under 18 at the time of the offence was an “immediate concern”; it reported that the Child Act was under review, the Ministry of Women, Family and Community Development was planning to recommend the withdrawal of the sentence of caning for children (A/HRC/11/30, 5 October 2009, Report of the Working Group on the Universal Periodic Review: Malaysia, paras. 56 and 59). There have been no indications of any intention to prohibit corporal punishment under Islamic law.

Corporal punishment is lawful as a disciplinary measure in penal institutions. The Prison Act (1995) allows for punishment with a rattan for disciplinary offences (article 50).

Alternative care

Corporal punishment is lawful in other institutions and forms of childcare.

Prevalence research

According official figures, 31 sentences of whipping were passed on Malaysian boys under section 91(g) of the Child Act and section 288 of the Criminal Procedure Code in the ten years up to April 2012; 31 sentences of whipping were carried out on boys during that time. In the same period, 19 sentences of whipping were passed on Malaysian children (boys and girls), and 19 carried out, under Sharia legislation. (Information provided to the Global Initiative by te Prison Department of Malaysia, 27 April 2012)

A study of 120 parents in Malaysia found that 40% had inflicted “moderate” physical punishment (hitting with an object, spanking, pinching, pulling hair, twisting a child’s ear, “knuckling” the back of a child’s head, forcing a child to kneel or stand painfully, putting chilli pepper in a child’s mouth and/or shaking a child aged over 2) on their child. Eight per cent had inflicted severe physical punishment, including shaking a child aged under 2, kicking, choking, smothering, burning, beating up, threatening with a knife or gun and/or giving a child drugs or alcohol. (Runyan, D. K. et al (2009), Child Abuse & Neglect 33, 826-832, cited in UNICEF East Asia and Pacific Regional Office (2012), Child Maltreatment: Prevalence, Incidence and Consequences: A Systematic Review of Research, Bangkok: UNICEF)

In 2003, research into human rights awareness among secondary school teachers, students and administrators conducted by researchers from local universities assigned by the Human Rights Commission of Malaysia (Suhakam) found the cane being used regularly. In the survey of 5,754 students, 52% agreed that caning commonly happened in their schools, more often in rural schools than urban schools; around 80% of cases occurred at technical schools; 79.5% of teachers and 71.8% of administrators agreed that persistent offenders should be caned. (Reported in New Straits Times, 21 March 2004)

A comparative study of 10,073 children aged 9-17 years across East Asia and the Pacific by UNICEF and Research International Asia (Thailand) in 2001 found that 25% of those surveyed in Malaysia reported having been beaten by their parents. The reason for children finding it difficult to talk to teachers was given by 2% of the children as because the teachers “beat them”. (UNICEF, 2001, Speaking Out! Voices of Children and Adolescents in East Asia and the Pacific)

Recommendations by human rights treaty bodies

Committee on the Rights of the Child

“The Committee, while welcoming the State party’s statement that it will amend the provisions of the Child Act 2001 (Act 611) which provide for caning of male children, expresses its deep concern that caning is still a lawful penal sanction provided by the Child Act and that it is also used as a disciplinary measure in penal institutions.

“The Committee urges the State party to immediately abolish all forms of cruel, inhuman or degrading punishments, including caning and other forms of corporal punishment imposed on persons having committed a crime when under the age of 18 and as a disciplinary measure in penal institutions, taking into account the Committee’s General Comment No. 8 (2006) on the right of the child to protection from corporal punishment and other cruel or degrading forms of punishment (CRC/C/GC/8).

“The Committee notes with appreciation that violence against children, such as physical, sexual, mental and emotional violence, as well as abandonment and neglect, are addressed in the Child Act 2001 (Act 611), and that since August 2002 incest has been criminalized by the Penal Code (Act 574). It also notes with appreciation that the Domestic Violence Act 1994 (Act 521) protects the child against violence within the family. It also notes with appreciation the State party’s willingness to establish a toll-free helpline for children. However, despite the measures taken to provide protection against violence, abuse and neglect, the Committee notes with grave concern that domestic violence, including violence against children in the family, remains a serious human rights problem in the State party. The Committee notes with concern that, owing to the strong social and cultural taboos, victims and witnesses rarely report these cases, although there exist established mechanisms to receive reports on child abuse and neglect, including a tollfree helpline “Teledera” which is, however, limited to reporting on child-abuse cases. It also notes with concern that corporal punishment in the home is lawful.

“In the light of article 19 and other relevant provisions of the Convention, and taking into account the recommendations of the Committee adopted on its Day of general discussion on violence against children within the family and in schools held on 28 September 2001 (CRC/C/111, paras. 701-745), the Committee urges the State party to: …

c) prohibit by law all forms of corporal punishment in the home and conduct a comprehensive study to assess the nature and extent of this phenomenon;

d) continue to sensitize and educate parents, guardians and professionals working with and for children by carrying out public education campaigns about the harmful impact of violent forms of ‘discipline’ and promote positive, non-violent, participatory methods of child-rearing….

“In this respect, the Committee recommends that the State party seek cooperation with, among others, the United Nations Educational, Scientific and Cultural Organization (UNESCO) and UNICEF, to further improve the education sector.

“The Committee notes with concern that the corporal punishment of boys is still a lawful disciplinary measure and used in secondary schools.”
(25 June 2007, CRC/C/MYS/CO/1, Concluding observations on initial report, paras. 48, 49, 57, 58, 77 and 78)

Universal Periodic Review

Malaysia was examined in the first cycle of the Universal Periodic Review in 2009 (session 4). The following recommendations were made (A/HRC/11/30, Report of the Working Group, paras. 21, 76, 92 and 106(11)):

“… Israel recommended that Malaysia (c) outlaw the practice of torture and cruel, inhuman and degrading treatment, including the whipping of persons for alleged violations of the Immigration Act….

“Chile … recommended … (c) the elimination of all cruel and degrading punishment….

“Germany recommended that Malaysia: … (b) outlaw corporal punishment at home; and provide victims of domestic violence with access to legal remedies and protection from potential perpetrators; effective campaigns should be set in place to inform and sensitise the population on this matter;….

“Outlaw corporal punishment at home; and provide victims of domestic violence with access to legal remedies and protection from potential perpetrators (Germany); Set in place effective campaigns to inform and sensitize the population on this matter (Germany)”

The Government stated that abolition of caning of children as a sentence of the courts was an “immediate concern” (A/HRC/11/30, Report of the Working Group, para. 56) and that the Child Act is under review including to replace the sentence of caning with community service (A/HRC/11/37, Report of the Human Rights Council on its eleventh session, para. 695).

Examination in the second cycle is scheduled for 2013.